NCAT Appeal Panel Decisions Digest Issue 10 of 2022 | The NCAT Appeal Panel Decisions Digest provides monthly keyword summaries of decisions of the NSW Civil and Administrative Tribunal (NCAT) Internal Appeal Panel.
This issue features summaries of the following Appeal Panel decisions handed down in October 2022:
HealthShare NSW v CJU [2022] NSWCATAP 316: The Appeal Panel set aside a decision under the Privacy and Personal Information Protection Act 1998 (PPIPA), holding that the Tribunal applied a definition of “personal information” under PPIPA which was too wide and inclusive, and erred by reading down the exemption applicable to the exchange of information between government agencies in s 27A PIPPA. Hong Kong Pty Ltd atf The Hong Kong Trust v Hamilton [2022] NSWCATAP 321: The Tribunal erroneously found that a “share accommodation agreement” fell under the Residential Tenancies Act 2010 (NSW), rather than the Boarding Houses Act 2012 (NSW). The Appeal Panel further held that there was no breach by the landowner of the quiet enjoyment provisions in the agreement. North Sydney Council v EIG [2022] NSWCATAP 331: The Appeal Panel set aside a decision that the Council breached the disclosure and use restrictions in PPIPA when it published information relating to legal proceedings. Non-compliance with the privacy principles was necessarily implied or reasonably contemplated by s 11 of the Local Government Act 1993 (NSW), and accordingly the Council was exempt from compliance under s 25 PPIPA.
Each case title is hyperlinked to the full decision available on NSW Caselaw. | | | HealthShare NSW v CJU [2022] NSWCATAP 316 Administrative and Equal Opportunity Division Cole DCJ, Deputy President; T Simon, Principal Member
In sum: The Appeal Panel set aside the entire decision of the Tribunal, which erroneously determined that certain personal information in an email had been “disclosed” from one agency to another. The Tribunal also erroneously interpreted s 27A of the PPIPA which exempts agencies from compliance with the privacy principles where it is “reasonably necessary” to enable inquiries between agencies. The Tribunal erred in holding that an agency must have a policy for referred inquiries before being entitled to rely on the exemption, and that the exemption could not apply to bilateral transfers of information.
Facts: The appellant (HealthShare) challenged the decision of the Tribunal, which held the agency was liable under s 10 (collection principles) and s 18 (disclosure restriction) of the PPIPA. The respondent (CJU) had made an email enquiry of HealthShare which could only be answered by a different agency (the LHD). Consequently, an officer of HealthShare forwarded the email enquiry to the Human Resources Department of the LHD. CJU complained that the email had been referred to the LHD because it disclosed her personal information. The email correspondence included CJU’s opinions about the LHD. It was apparent that CJU had previously communicated those opinions to the LHD on a separate occasion.
In the appeal, HealthShare argued that (a) the Tribunal had misidentified information communicated to the LHD via email as “personal information”, and that any “personal information” which was included in the email was not “disclosed” because it was already known to the LHD; (b) the finding that HealthShare had any reason to expect that CJU would object to any disclosure was erroneous; (c) that s 27A of PPIPA exempted any non-compliance with the privacy principles; and (d) that the Tribunal denied HealthShare procedural fairness in making the finding of breach of s 10 which was not in issue below and beyond jurisdiction.
Held (allowing the appeal):
(i) Simply sending an email cannot be categorised as ‘personal information’ for the purpose of s 4(2) PPIPA. Examples of personal information in the legislation contemplate fingerprints or body samples, being intrinsic characteristics of a person. The act of sending an email is simply an event which has occurred and falls outside the scope of s 4(2) PPIPA, and the Tribunal erred by categorising it as such (at [49], [50]).
(ii) There was one email from CJU which expressed an opinion about the practices of HealthShare, and another opinion, being that one staff member was acting inappropriately. Whilst this email revealed a suspicion held by CJU, which would be considered personal information in the same way as an opinion, it was not considered that any other information in the email disclosed personal information which was not already held by the LHD (at [1], [53], [54], [55], [58]).
(iii) Even if this information had been a public interest disclosure, it would have been specifically exempted from being categorised as ‘personal information’ under s 4(3)(c) PPIPA. Where the LHD already possessed the information as to CJU’s opinions about the LHD, there could not be a breach of s 18 PPIPA. The “suspicion” contained in the emails had already been aired by CJU to the LHD (at [67] to [77]).
(iv) In any event, HealthShare was exempted from compliance with s 18 of PPIPA in relation to the sharing of the emails with the LHD because the provision of information to the LHD was “reasonably necessary” to refer inquiries between the agencies under s 27A(b)(ii) PPIPA.
(v) Where no personal information was disclosed, there could not have been a breach of s 27A PPIPA, relating to the exchange of information between public sector agencies. However, if that determination were wrong, the information provided by HealthShare to LHD was “reasonably necessary” per s 27A(b)(ii) PPIPA.
(vi) The Tribunal also erred in its construction of s 27A by seeking to limit and confine what can be considered to be the “inquiries” in s 27A(b)(ii) by reference to the agency’s policy. There was no warrant to read down the legislation in this way. Even if the information had been provided to the LHD with a view to that information being provided back to HealthShare to assist CJU with its enquiry, that would not sit outside the scope of the exemption. Further, the Tribunal, in failing to raise the issue of the construction of s 27A with the parties, and then making a determination in relation to the construction of s 27A, denied the parties procedural fairness (at [95], [97], [98], [99], [100], [101], [102]).
(vii) Finally, the Tribunal found that HealthShare breached s 10 PPIPA by collecting private information and failing to provide CJU with a privacy notice. Where this was not raised with the agency, the agency was denied procedural fairness. Additionally, even if it had been properly raised, the issue was not within the scope of the internal review application and accordingly outside the scope of the Tribunal’s review jurisdiction (at [103], [104], [105], [110]). | Hong Kong Pty Ltd atf The Hong Kong Trust v Hamilton [2022] NSWCATAP 321 Consumer and Commercial Division - Tenancy R C Titterton OAM, Senior Member; G Ellis SC, Senior Member
In sum: The Tribunal erroneously found that a shared accommodation agreement fell under the Residential Tenancies Act 2010 (NSW) (RT Act), rather than the Boarding Houses Act 2012 (NSW) (BH Act), which had implications for the rights of the tenant upon eviction. The Appeal Panel set aside an order for compensation, finding that there was no breach by the appellant of the quiet enjoyment provisions of the agreement.
Facts: On 30 October 2021, the respondent (Mr Hamilton) signed a “Shared Accommodation Agreement” with the appellant (HKT), to rent a room in a Haymarket backpackers’ hostel for six months. Rent was $200 per week; the security bond was $800 and it was a condition in the agreement to adhere to the assigned “House Rules” of the hostel. On 9 January 2022, Mr Hamilton was sent an email notifying him that a complaint had been made about his behaviour, and should this behaviour be repeated, he would be evicted without reasonable written notice. The following day, another complaint about Mr Hamilton’s behaviour was received, and he was issued with an eviction notice. After failing to leave promptly, he was escorted by police. At first instance, it was found that the tenancy agreement had been wrongly terminated, that Mr Hamilton was entitled to his bond, that he be repaid the rent paid past the termination date and compensation of $400 be paid to him for the HKT’s act of depriving him of his right to quiet enjoyment. In total, HKT was required to pay Mr Hamilton $1,571.42, effected by Mr Hamilton garnisheeing HKT’s bank account. HKT appealed the decision, challenging the decision of the Tribunal which found the agreement fell under the RT Act rather than the BH Act. It also noted that Mr Hamilton was evicted by Hostel management and three police officers because of his sexual harassment of other guests.
Held (allowing the appeal):
(i) The Tribunal erred in finding that the Agreement constituted a residential tenancy agreement governed by the RT Act and its reasons for that finding were “inadequate”. It provided no “indicia” or evaluation of the competing factors to determine which criteria in the agreement satisfied the provisions under the RT Act and in doing so, failed to consider whether or not the arrangements reflected a relationship of boarding house operator and boarder (at [44], [45], [46], [51]).
(ii) The primary reason the Tribunal determined it was “residential” was the length of time, where a six-month room rental was unusual for backpacker hostels. This was unpersuasive where the agreement was modelled on the “Boarding House Standard Occupancy Agreement” and disputes were to be governed by s 30 and Sch 1 of the BH Act. The hostel met the requirements of a boarding house in s 52 BH Act, whereby a bed is provided for a fee and the premises can accommodate more than 5 people at a time. House Rules limiting the use of common space and regulating the room usage were also indicative of a boarding house arrangement (at [52], [53], [54], [55], [57]).
(iii) As the written notice of eviction called for Mr Hamilton’s immediate departure from the premises, the Share Accommodation Agreement disentitled HKT from retaining the occupancy fees which had been paid in advance by Mr Hamilton. Consequently, Mr Hamilton was entitled to a refund of overpaid occupancy fees. As the security deposit must not be more than 2 weeks occupancy fees under s 8(1)(b) HB Act, Mr Hamilton was also entitled to retain half of the paid security deposit (at [59], [61], [62]).
(iv) Under the agreement, immediate termination required the security deposit to be forfeited, meaning Mr Hamilton was not entitled to the full repayment of the bond. The $400 compensation awarded by the Tribunal was based on HKT’s alleged breach of Mr Hamilton’s “quiet enjoyment”. The Appeal Panel held that HKT did not breach the quiet enjoyment provisions of the agreement. Mr Hamilton was ordered to reimburse HKT $800 (at [63], [64], [67], [68], [71]). | North Sydney Council v EIG [2022] NSWCATAP 331 Administrative and Equal Opportunity Division A Britton, Deputy President; T Simon, Principal Member
In sum: The decision of the Tribunal was set aside, as it erroneously found the Council had breached the Privacy Principles in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA), concerning the storage, use and disclosure of personal information of an elected councillor’s privacy complaint against the Council in NCAT. Allowing public inspection of material concerning the Council’s legal proceedings was reasonably contemplated by the Local Government Act 1993 (NSW) (LGA). Accordingly, the Council was exempt from compliance with the privacy principles.
Facts: The appellant (the Council) challenged the decision of the Tribunal, which found that its disclosure of personal information of the respondent (EIG) was contrary to the Privacy Principles. EIG, an elected councillor, alleged that his personal information was improperly published in a notice on the Council’s website, prior to a meeting of the Council’s Legal and Planning Committee (LPC), thereby breaching the privacy obligations which were binding on the Council concerning the secure storage (s 12 PPIPA), use (s 17 PPIPA) and disclosure of personal information (s 18 PPIPA). The Tribunal found the relevant information had been collected by the Council for the purpose of an internal review but using that information in respect of separate administrative review in NCAT was improper. It found that the LPC was not an “organ” involved in the day to day running of the Council. Thereby, the information collected by the Council and prepared for the LPC, was not directly related to the purpose for which it was collected, with the Council breaching ss 17 and 18 PPIPA. The Council challenged this decision, arguing that it had used the information for the purpose it was collected, that the LPC exercised a function of the Council and that the Council had reasonably contemplated the disclosure obligations under s 18 PPIPA but believed it was exempt.
Held (allowing the appeal):
(i) The LPC was found to be properly delegated as a committee of the Council per s 355(b) of the Local Government Act 1993 (LGA) and the LPC’s Charter. Section 355 sets out how a council may exercise functions and includes that a function of council may be exercised by a committee of the Council. All elected members of the Council are ex officio members of the LPC. The aim of the LPC Charter was to consider the Council’s involvement in legal proceedings. The functions of the LPC included analysing Council's involvement in legal proceedings. The Tribunal therefore erred in its finding that the LPC was not an “organ” of the Council and the information was used improperly (at [19], [31], [32], [33], [34], [35]).
(ii) EIG’s personal information was found to be “directly related” to the purpose which it was collected. An internal review and an administrative review in NCAT are two separate processes. The personal information of the appellant had been collected for the purposes of the administrative review proceedings. It was the function of the LPC to analyse the Council’s involvement in those proceedings. Therefore, analysis of the information was directly related to the purpose for which it was collected (at [38], [40]).
(iii) The Tribunal erred in its finding that s 18 PPIPA (concerning the improper disclosure of personal material) was breached. Section 25 PPIPA explicitly exempts an agency (the Council) from compliance with s 18 PPIPA if disclosure is permitted or reasonably contemplated under another Act or law. The Council was required by s 11 of the LGA to give reasonable access to any person to inspect the LPC reports. Accordingly, non-compliance with s 18 of the PPIP Act was necessarily implied or reasonably contemplated (at [49], [50], [51]).
(iv) Once the personal information was accepted by the Council, that the information was “taken under the control” of the Council for its administrative purposes, per s 17 PPIPA. Given this concession, and the findings on the other grounds, the Appeal Panel found it unnecessary to deal with the purported breaches under ss 12 and 17 PPIPA, as it had already been established the information was properly collected and used directly for the purpose which it was collected (at [14], [15], [38], [52]). | | | HealthShare NSW v CJU [2022] NSWCATAP 316 Administrative and Equal Opportunity Division Decision of: Cole DCJ, Deputy President; T Simon, Principal Member Catchwords: APPEALS — Privacy- whether leave to appeal is required - meaning of “personal information” – meaning of “disclosure” – what constitutes a referral – procedural fairness | | | The Owners – Strata Plan No 80211 v Control Services Pty Ltd & Killen [2022] NSWCATAP 319 Consumer and Commercial Division - Consumer Claim Decision of: I R Coleman SC ADCJ, Principal Member; M Gracie, Senior Member Catchwords: APPEAL – NCAT – appeal from Consumer and Commercial Division – no question of law - leave to appeal – contract with respondent for fire safety services – limited scope of work - claim for rectification costs associated with non-compliant annual fire safety statements – no nexus between damages claimed and non-compliant annual fire safety statements - no substantial miscarriage of justice – no issues of principle or public importance | | Hong Kong Pty Ltd atf The Hong Kong Trust v Hamilton [2022] NSWCATAP 321 Consumer and Commercial Division - Tenancy Decision of: R C Titterton OAM, Senior Member; G Ellis SC, Senior Member Catchwords: LEASES AND TENANCIES – whether or not accommodation arrangement constituted a residential tenancy agreement or an arrangement between boarding house proprietor and resident | ADM Packaging Automation Pty Ltd v EST Group Pty Ltd [2022] NSWCATAP 322 Consumer and Commercial Division - Consumer Claim Decision of: The Hon D A Cowdroy, AO KC, Principal Member; D G Charles, Senior Member Catchwords: CONSUMER CLAIM – application of the Australian Consumer Law – breach of consumer guarantees - whether Tribunal decision was against the weight of evidence – leave to appeal refused | Uddin v Truong [2022] NSWCATAP 323 Consumer and Commercial Division - Commercial Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: LAND LAW – Dividing Fences Act – consent orders – whether consent in fact given – determination of boundary – whether determination of boundary under part 14A of the Real Property Act is “fencing work” as defined by the Dividing Fences Act – operation of ss 14 and 18 of the Dividing Fences Act – power of the Tribunal to make order concerning who should pay costs of the Registrar General | Coolah Home Base Pty Ltd v Tait [2022] NSWCATAP 324 Consumer and Commercial Division - Retirement Villages Decision of: A Suthers, Principal Member; G Burton SC, Senior Member Catchwords: REAL PROPERTY - RETIREMENT VILLAGES – RESIDENTIAL (LAND LEASE) COMMUNITIES - definition and interpretation – Retirement Villages Act 1989 (NSW) ss 3, 4, 5, 7, 24A, 40, 128, 129, 130, 136, 136A, 138, 139 | McDermott v Wang [2022] NSWCATAP 325 Consumer and Commercial Division - Strata Decision of: G Blake AM SC, Senior Member; C Mulvey, Senior Member Catchwords: APPEAL - costs – leave to appeal – error of law – exercise of discretion | The Owners - Strata Plan No 19410 v King atf the Cascade Trust [2022] NSWCATAP 326 Consumer and Commercial Division - Strata Decision of: K Rosser, Principal Member; P H Molony, Senior Member Catchwords: APPEAL – no question of law – leave to appeal – decision not against the weight of evidence – leave refused – appeal dismissed. LAND LAW - Strata title – owners corporation breached the duty to properly maintain and keep in a state of good and serviceable repair the common property - Whether the owners corporation is liable for damages for loss of rent – whether one concurrent cause a cause of loss | Zioukin v Lang [2022] NSWCATAP 327 Consumer and Commercial Division - Tenancy Decision of: S Westgarth, Deputy President; R C Titterton OAM, Senior Member Catchwords: APPEALS – application for extension of time in which to file notice of appeal – costs at first instance- tenant unnecessarily prolonging proceedings- special circumstances warranting an award for costs-adequacy of reasons- order to pay a lump sum- questions of law – applications for leave to appeal – no question of principle | Brown v The Owners – Strata Plan No. 82527 [2022] NSWCATAP 328 Consumer and Commercial Division - Strata Decision of: M Harrowell, Deputy President; G Burton SC, Senior Member Catchwords: PRACTICE AND PROCEDURE – Strata Schemes Management Act – Penalty application and application for general orders – impermissibility of combined applications – different provisions concerning evidence and manner of enquiry – different rights of appeal – failure to undertake decision-making task in connection with civil penalty proceedings – failure to exercise jurisdiction – procedural irregularity – power to set aside decision – consent orders to set aside decision. | Sun v Zhang [2022] NSWCATAP 329 Consumer and Commercial Division - Tenancy Decision of: D Charles, Senior Member; D Ziegler, Senior Member Catchwords: APPEAL – procedural fairness - leave to appeal - against the weight of evidence – fair and equitable – significant new evidence – extension of time | Bombardieri v Milsom [2022] NSWCATAP 330 Consumer and Commercial Division - Consumer Claim Decision of: Blake AM SC, Senior Member; D Goldstein, Senior Member Catchwords: APPEALS — Leave to appeal — Principles governing – leave to appeal refused APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons BAILMENT — Remedies — Under statute — Uncollected Goods Act 1995 (NSW) – application for delivery of goods and compensation dismissed | North Sydney Council v EIG [2022] NSWCATAP 331 Administrative and Equal Opportunity Division Decision of: A Britton, Deputy President; T Simon, Principal Member Catchwords: APPEALS — Privacy - whether leave to appeal is required – whether the personal information was collected – use of the relevant personal information – disclosure and s 11 of the Local Government Act - failure to resolve a factual dispute | Manca v Tullipan Homes Pty Ltd (No 2) [2022] NSWCATAP 332 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Senior Member Catchwords: COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion – where an appeal is upheld and the proceedings remitted to the Consumer and Commercial Division for reconsideration | NSW Land and Housing Corporation v Khalkhali [2022] NSWCATAP 333 Consumer and Commercial Division - Social Housing Decision of: I. R. Coleman SC ADCJ, Principal Member; G. Sarginson, Senior Member Catchwords: APPEALS---Procedural fairness---Ex parte hearing---Orders made outside scope of proceedings---Leave to amend not sought or granted LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Duty to repair---Failure to repair---Remedial orders---Prospective order for compensation on a daily basis LEASES AND TENANCIES---Residential Tenancies Act 2010 (NSW)---Repairs---Landlord’s duty---Whether repair or capital improvement | Xu v PBR Property Consultants Pty Limited [2022] NSWCATAP 334 Consumer and Commercial Division - Consumer Claim Decision of: I R Coleman SC ADCJ, Principal Member; S Thode, Senior Member Catchwords: APPEAL – CONSUMER CLAIM – no issue of principle - failure by Appellant to request written reasons as directed – no demonstrable error | Sunaust Properties Pty Ltd v The Owners SP no 64807 (No 2) [2022] NSWCATAP 335 Consumer and Commercial Division - Strata Decision of: S Westgarth, Deputy President; I Coleman SC ADCJ, Principal Member Catchwords: APPEAL- slip rule-s63 of the Civil & Administrative Tribunal Act- whether grounds one and two of appeal not considered was an omission – whether the grounds of appeal not considered should be considered- whether a caretaker agreement predating the 2002 amendments to the strata legislation may be terminated under s72 of the current strata legislation introduced in 2016 | Kaur v Sharma [2022] NSWCATAP 336 Consumer and Commercial Division - Tenancy Decision of: K Rosser, Principal Member; R C Titterton OAM, Senior Member Catchwords: LEASES AND TENANCIES – jurisdiction of Tribunal and Appeal Panel where matter before Supreme Court of NSW PRACTICE AND PROCEDURE – failure of Tribunal to adjourn proceedings APPEAL – Decision of the Tribunal - whether question of law – whether some other error including being against the weight of the evidence | Sewell v Zvirblis [2022] NSWCATAP 337 Consumer and Commercial Division - Tenancy Decision of: G Curtin SC, Senior Member; D Robertson, Senior Member Catchwords: LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — repairs — landlord’s duty – whether common property within definition of “residential premises” in s 62 of the Residential Tenancies Act – held, common property not within the definition of “residential premises” in s 62 of the Residential Tenancies Act LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — rent — excessive rent – whether the need for repairs not caused by the landlord fell within s 44(1)(b) of the Residential Tenancies Act – absent a breach of the landlord’s obligation to repair, the need for repairs does not amount to the reduction or withdrawal of goods, services or facilities by the landlord | Aksan v Godfrey [2022] NSWCATAP 338 Consumer and Commercial Division - Home Building Decision of: G Blake AM SC, Senior Member; G Curtin SC, Senior Member Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — building dispute — Tribunal powers – consent order for work to be done – completion of work to applicable building standards to be signed-off by independent expert – sign-off provided – challenge to sign-off – principles applicable to challenging expert determination agreed to by parties | | Tran v Brown [2022] NSWCATAP 343 Consumer and Commercial Division - Motor Vehicles Decision of: A Suthers, Principal Member; M Gracie, Senior Member Catchwords: APPEALS – Leave to appeal – principles governing – procedural fairness – relevance or transcript to proof conduct of hearing unfair. | | | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Appeal Panel Decisions Digest should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication. |
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